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Evelyn Mak
Jamil Aslam

Since 2012, when the U.S. Patent and Trademark Office instituted inter partes review and covered business method review to challenge the validity of patents, defendants sued for patent infringement have been increasingly using these procedures and finding them to be effective tools.

There are different strategies defendants and patent owners should consider with these procedures.

Under the new procedures, an IPR can be widely used because it applies to all patents. A petitioner can file an IPR petition based on §102 (anticipation) or §103 (obviousness) grounds using only prior art patents or printed publications. A petitioner can file an IPR petition without being sued for patent infringement, but will be barred after one year from the date of service of a complaint or if it filed a declaratory judgment action of invalidity.

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